VII. ORAL PROCEEDINGS BEFORE THE BOARDS OF APPEAL

1. Articles 116 and 117 EPC together with Rules 71 – 76 EPC provide for the taking of evidence from witnesses or experts in oral proceedings before the European Patent Office. Part E-IV, points 1 to 4, of the Guidelines for Examination in the European Patent Office give general guidelines on the taking of evidence by the relevant departments of the European Patent Office.

2. To secure payment of costs for the taking of evidence the European Patent Office may make the taking of evidence conditional upon deposit with it, by the party who requested the evidence to be taken, of a sum the amount of which shall be fixed by reference to an estimate of the costs (Rule 74(1) EPC).

3. Any witness or expert who is summoned before the European Patent Office may request the Office to allow his evidence to be heard by a competent court in his country of residence (Article 117(4) EPC), in accordance with the provisions of Article 131(2) EPC.

4. Witnesses who are summoned by and appear before the European Patent Office are entitled to:

(1) appropriate reimbursement by the European Patent Office of expenses for travel and subsistence (Rule 74(2) EPC). An advance for the expenses may be granted to them following written request to the Office.

(2) appropriate compensation paid by the European Patent Office for loss of earnings (Rule 74(3) EPC). Payment of compensation shall be made after the witness has fulfilled his duties.

5. Witnesses who are not summoned by the European Patent Office but whose evidence is heard in proceedings before the Office are also entitled to reimbursement by the European Patent Office of expenses for travel and subsistence, and compensation for loss of earnings. Such reimbursement is dependent on the department in question taking a decision that it should hear the additional evidence, following a reasoned request by one of the parties to the proceedings (Guidelines for Examination Part E-IV, 1.6.2) that the evidence be heard.

6. Experts who are summoned by and appear before the European Patent Office are entitled to:

(1) appropriate reimbursement by the European Patent Office of expenses for travel and subsistence (Rule 74(2) EPC). An advance for these expenses may be granted following a written request to the Office.

(2) fees for their work pursuant to Rule 74(3) EPC determined by the Office taking into account a proposal by the expert concerned and possible comments by the parties.

7. Experts who are not summoned but are heard are also entitled to reimbursement by the European Patent Office of expenses for travel and subsistence, and fees for their work. Such reimbursement is dependent on the department in question taking a decision that it should hear the additional evidence of the expert following a reasoned request by one of the parties to the proceedings (Guidelines for Examination Part E-IV, 1.6.2) that the evidence be heard.

8. Payment procedure

(1) Under the provisions of Rule 74(4) EPC the Administrative Council of the European Patent Organisation has adopted Implementing Regulations on the compensation and fees payable to witnesses and experts[ 2 ] and these are printed in full under point 9 below.

(2) When a witness or expert is summoned to proceedings at the European Patent Office he will receive with the summons (Rule 72(2) EPC) a travel order containing details of those amounts payable under points 4(1) or 6(1) above, together with a request form covering an advance on expenses. Before an advance can be paid to a witness or expert his entitlement must be certified by the Division or Board which ordered the evidence to be taken. The request form must therefore be returned to the Office for certification.

(3) Payments to witnesses or experts for loss of earnings or fees under points 4(2) and 6(2) above will be made following submission to, and certification by, the Division or Board which ordered the evidence to be taken. These payments together with any payments outstanding in respect of expenses for travel and subsistence will be made after the witness or expert has given his evidence and the Division or Board which ordered the evidence to be taken has certified the witnesses' or experts' entitlement.

(4) In the case of fees payable to experts the European Patent Office may decide to invite the parties to submit their comments on the amount proposed by the expert (Article 3(2) Regulation on Compensation and Fees Payable to Witnesses and Experts), in which case payment can only be made after these comments have been received and the Division or Board has certified the entitlement.

9. Regulation on Compensation and Fees Payable to Witnesses and Experts

Article 1

Travel and subsistence expenses payable to witnesses and experts

The compensation payable to witnesses and experts in respect of travel and subsistence expenses provided for in Rule 74, paragraph 2, and the advances to which they may be entitled, shall be calculated on the same basis as the compensation received by employees of the European Patent Office in grade A4 when fulfilling missions entrusted to them.

Article 2

Compensation for loss of earnings payable to witnesses

(1) The compensation for loss of earnings payable to witnesses pursuant to Rule 74, paragraph 3, shall be equal to one-sixtieth of the basic monthly salary of an employee of the Office at the lowest step of grade A4.

(2) If a witness is required to be absent for a total period of more than twelve hours, he shall be entitled to payment of further compensation equal to one-sixtieth of the basic salary referred to in paragraph 1 in respect of each further period of twelve hours which is commenced.

Article 3

Fees payable to experts

(1) The amount of the fees payable to experts pursuant to Rule 74, paragraph 3, shall in each case be determined taking into account a proposal by the person concerned.

(2) The European Patent Office may invite the parties to submit their comments on the proposed amount.

Article 4

Certification of witnesses' and experts' entitlement to compensation and fees

(1) The entitlement of witnesses and experts to compensation and fees shall be certified by the Division or Board which ordered the evidence to be taken, unless it has delegated this power to the member commissioned to take the evidence.

(2) Paragraph 1 shall apply with respect to advances claimed by witnesses and experts on travel and subsistence expenses.